NORTH HOLLYWOOD, Calif. — The creators of “Boston Cream Thighs” will have to go back to the drawing board: Adult studio Caballero has reached an agreement with Ben & Jerry’s to stop releasing DVDs that recall the company’s ice cream flavors and packaging.
The decision, made public today, resolves a trademark infringement lawsuit that Ben & Jerry’s filed against Caballero last September.
The Vermont-based ice cream company took action when Caballero released the “Ben & Cherry’s” ten-title film series that included "Boston Cream Thighs," "Chocolate Fudge Babes" and "Peanut Butter D-Cups."
Ben & Jerry's had claimed that the titles were too similar to its ice cream flavors Boston Cream Pie, Chocolate Fudge Brownie and Peanut Butter Cup, respectively.
The agreement also encompasses labels, packaging and advertising that mimicked Ben & Jerry's own. Caballero's packaging featured puffy white clouds and grazing cows, as well as the slogan "Porno's Finest." Ben & Jerry's uses the slogan "Vermont's Finest."
A week after Ben & Jerry's sued last year, Caballero had agreed not to market the challenged products while the case was pending.
Ben & Jerry' s attorneys had said in the original court filing that parody was not a viable defense in the case because it only applies where the use of another's mark offers commentary or criticism of the parodied mark, rather than merely marketing a product.
"The parody defense fosters social commentary, criticism and creative expression for its own sake, but it does not protect a purveyor of pornography who chooses to appropriate the goodwill of a famous brand to boost its sales," Ben & Jerry' s counsel said.
U.S. District Judge Lewis Kaplan approved the consent judgment between the parties on Monday.
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